ISBN 978 1 9060 0664 8
2. Parliamentary procedure
3. Compulsory purchase procedure
4. Compensation where property is taken
5. Compensation where no property is taken
6. Contact details
1.1 Transport Scotland is an Agency of the Scottish Government and is accountable to the Scottish Ministers. The agency is responsible for driving the delivery of the Ministers’ capital investment programme of road and rail transport improvements, which includes the construction of new trunk roads or motorways or enhancing existing ones. The service of planning, design development, land acquisition, procurement and the construction and completion of the Forth Replacement Crossing and linking roads is provided by the agency’s Forth Replacement Crossing Project on behalf of the Scottish Ministers.
1.2 This guide provides information and advice about the statutory procedures that the Scottish Ministers and Transport Scotland propose to follow for the compulsory purchase process. The guide also contains information on compensation where property is acquired and where property is affected either during the construction of the project or once the bridge and roads are operational.
1.3 The guide has been prepared for people who have property, farms or businesses which are directly affected by the proposed Forth Replacement Crossing Scheme.
1.4 Though the Scottish Ministers are responsible for promoting the parliamentary Bill and are the acquiring authority, it is Transport Scotland that deals with the day to day matters on behalf of the Scottish Ministers. Any queries, therefore, in respect of the content of this document should be directed to Transport Scotland whose details are in section 6 of this guide.
1.5 The law and procedure relating to compulsory purchase and compensation is complex. Of necessity the information set out in this guide is a simplification and cannot cover every circumstance that may arise. The information contained in this guide is not intended to be a complete explanation of the law and carries no legal force. However, it should provide an understanding of the process for authorising the parliamentary Bill, the compulsory purchase procedure and the principles to be applied in assessing compensation.
1.6 This guidance should not be regarded as a substitute for professional advice. If any interest you have in a property, farm or business is affected by the scheme, the Scottish Ministers recommend that you seek advice from a professionally qualified person such as a surveyor or solicitor. They can advise you on the rights that you have and act on your behalf if appropriate. The Royal Institution of Chartered Surveyors (RICS) operate a dedicated helpline for compulsory purchase (0870 333 1600) which will put you in touch with a RICS member local to you, willing to provide a free 30 minute initial consultation. The RICS website (www.rics.org) is a useful resource for further information.
1.7 Whilst the Scottish Ministers will not meet the costs of you obtaining general professional advice, the Scottish Ministers will meet the fees of a professionally qualified person you appoint to negotiate the amount of compensation you will receive for the compulsory purchase of your property in line with a set scale.
1.8 If you are in any doubt as to whether your professional costs will be met you should contact the Land and Procurement Manager at Transport Scotland in the first instance (see section 5 for details).
1.9 The Scottish Ministers also appoint specialist support to handle the assessment of compensation – the Valuation Office, an agency of HM Revenue and Customs. The Valuation Office will use its expertise and experience to assess compensation for the compulsory purchase taking into account all statutory and common law provisions and report to the Scottish Ministers. The Valuation Office works to its own charter and further information on the work of the Valuation Office can be found at www.voa.gov.uk or telephone 0131 465 0700. Alternatively you can write to the organisation at District Valuer Scotland South East, 50 Frederick Street, Edinburgh EH2 ING.
2. Parliamentary procedure
2.1 The Scottish Ministers announced in December 2008 their decision to obtain authorisation for the construction of the Forth Replacement Crossing and connecting roads by means of a parliamentary Bill.
2.2 The design and development work associated with the scheme has now been completed to a level necessary to enable the Scottish Ministers to determine the proposed line of the road and the location of the bridge and identify the broad extent of the land required for the scheme. Detailed information on the scheme is available on the Forth Replacement Crossing website www.forthreplacementcrossing.info.
2.3 Where the Scottish Ministers intend to seek powers to purchase land on a compulsory basis, they will, when promoting the Bill, identify such property in a Book of Reference and in land plans that will accompany the introduction of the Bill.
2.4 The Book of Reference identifies the land and rights over land (which for simplicity are referred to as "property" in this guidance) which may be required for the scheme by reference to associated land maps. The owners and occupiers are identified as accurately as possible and their details are included in the Book of Reference.
2.5 Each owner and occupier listed in the Book of Reference, together with certain other parties as required by the Standing Orders of the Scottish Parliament (http://www.scottish.parliament.uk/business/so/sto-c) will be served with individual notices advising them of the intention of the Scottish Ministers to introduce a parliamentary Bill. The notices are typically issued the week before the introduction of the Bill.
2.6 If the name or address of the owner is not known and there is no person at the property to whom the notice may be delivered, notices advising of the intention to introduce the parliamentary Bill will be erected at the property.
2.7 The Scottish Ministers will also place advertisements in local and national newspapers of their intention to introduce the Bill.
2.8 The content of both the press notice and the individual notices is very similar, and each will:
- state the date on which the Bill will be introduced;
- provide a concise summary of the Bill’s purposes;
- specify the time within which objections to the Bill can be made;
- specify the manner in which objections to the Bill may be made; and
- advise where in the locality the Bill, associated documents and land plans may be inspected.
Outline of procedure
2.9 When the Bill is introduced to the Scottish Parliament the Parliament will publish the Bill and supporting documentation and place material on its website (www.scottish.parliament.uk). These documents will also be available on the project website (www.forthreplacementcrossing.info). The Parliament will also ensure that the Bill and all supporting documentation are placed in a number of publicly accessible sites such as local libraries, as advised in the notices. A full set of the documentation will also be available to view at Transport Scotland’s main offices in Glasgow and the Scottish Government offices at Victoria Quay in Edinburgh. (Details of both offices are provided in section 5).
2.10 There is a three-stage parliamentary process comprising:
Stage 1 – consisting of:
- Consideration by a committee of the general principles of the Bill and a decision by the Parliament to agree to those general principles.
- A decision by the Parliament on whether the Bill should proceed.
- Preliminary consideration of objections by a committee.
Stage 2 – consisting of:
- Consideration by a committee (or an appointed assessor) to hear detailed evidence on the Bill and objections to it.
- Consideration by a committee to consider and dispose of any amendments to the Bill.
Stage 3 – consisting of:
- Final consideration by the Parliament and a decision whether to pass or reject the Bill.
2.11 Parliamentary clerks will provide additional detailed information about the process when they write to objectors at the conclusion of the objection period. Some objectors may be required to provide additional information at a later stage by the parliamentary clerks.
2.12 After due consideration the Scottish Parliament may reject, approve or approve with modifications the Bill. Some of the modifications maybe in relation to the interests of those contained within the Book of Reference.
2.13 When the Bill has been through all the parliamentary stages and is approved by the Parliament, providing it has not been subject to a legal challenge within the four week statutory period, starting from the date the Bill was approved by the Parliament, the Bill will then be presented for Royal Assent and will become an Act.
2.14 The period for submitting objections to the Bill commences on the day on which the Bill is introduced and will close on the day specified within the notice. The period for submitting objections will not be less than 60 days. All objections should be made to the Scottish Parliament. The notices will give details of to whom and to what address the objection should be sent. An objection may be lodged in either English or Gaelic and must be accompanied by a fee of £20 payable to ‘The Scottish Parliament’.
2.15 The opportunity to lodge an objection is open to any individual, company or group of people who consider their private interests would be adversely affected by the Bill.
2.16 Prospective objectors with similar concerns may wish to consider lodging a joint objection rather than objecting individually. The reason for this is that the Bill Committee has the power to group objections that are similar in nature. This grouping process means that a number of individual objections on the same matter will be in no better position than a single objection signed by a number of individuals.
2.17 Prospective objectors may, if they wish, ask the parliamentary clerks for advice on procedures. Any specific issues relating to the making of objections should be directed to the Scottish Parliament and not to Transport Scotland or the Scottish Ministers. The Scottish Parliament has produced a leaflet providing information for objectors to Hybrid Bills. This leaflet can be obtained directly from the Scottish Parliament whose contact details are at section 6. Information on the makeup of an objection is also available at the Scottish Parliament’s website (http://www.scottish.parliament.uk/business/so/sto-4/#c9c)
2.18 Following the objection period the Scottish Parliament will consider all written objections and determine how its inquiry of the Bill and objections will be made.
2.19 The parliamentary clerks will notify each objector whether their objection is admissible. In the case of an objection signed by more than one individual, the clerks will correspond with the principal signatory on the objection and that signatory should be clearly identified. It will be the responsibility of that person to liaise with the other signatories.
2.20 At the end of the objection period a list of the names of those who have lodged admissible objections will appear in the Parliament’s Business Bulletin, this can be found on the Parliament’s website at www.scottish.parliament.uk.
2.21 During the objection period a Bill Committee will be appointed by the Parliament to consider the Bill. The Committee, which is made up of between three and five Members of the Scottish Parliament (MSPs), must consider any objections lodged in order to satisfy itself that each objection is clearly based on a reasonable claim that the objector’s interests would be adversely affected by the Bill.
2.22 If the Committee is not satisfied it may reject the objection. If the Committee is satisfied then those substantive issues raised in the objection will be considered during the Bill process.
2.23 The Parliamentary clerks will notify anybody whose objection is rejected by the Committee. There is no right of appeal.
2.24 An objector may withdraw their objection at any time by notifying the Parliamentary clerks.
2.25 Copies of each objection will also be placed in the Parliament’s Information Centre, which is accessible to MSPs, their staff and parliamentary staff. These copies will be the same as those published on the website. They will also be made available for inspection at each of the publicly accessible buildings such as libraries at which copies of the Bill and its accompanying documents were lodged.
2.26 Each objection will also be copied to the Scottish Ministers but with the objector’s email address, telephone number and signature, if provided, removed.
3. Compulsory purchase procedure
3.1 Following completion of the Bill process the next stage is for the Scottish Ministers to take title and possession of the property included in the Book of Reference. There are a number of different methods for taking possession. The one normally followed by the Scottish Ministers and which is likely to be pursued within the Bill is the General Vesting Declaration (GVD).
3.2 The GVD is a formal procedure that gives the Scottish Ministers title to the property and the right to enter and take possession of property included in the Book of Reference.
3.3 The Scottish Ministers will serve a notice of the making of the GVD on the affected parties. The notice will specify a date, known as the vesting date, when the Scottish Ministers will take title and entry to, and possession of, the property. The vesting date becomes the date for the assessment of compensation.
Short tenancy and long tenancy which is about to expire
3.4 Tenancy agreements are normally included in the GVD process. However, this is not the case for either a short tenancy or long tenancy which is about to expire. A short tenancy is a lease for up to a year or from year to year. A long tenancy which is about to expire is a lease which has more than a year, but less than a specified period to run. The period specified in the GVD itself is typically (but not always) 15 months.
3.5 The Scottish Ministers cannot purchase a short tenancy or a long tenancy which is about to expire by the GVD route. There are several different procedures open to the Scottish Ministers and the method chosen will depend on the individual circumstances of the tenancy in question. Alternatively the Scottish Ministers may decide that the best course of action is to let the tenancy run its course.
Related procedures – Severance
3.6 Where part of your property is included in the GVD, and you consider the effect on the remainder of the property is particularly severe, then you may be entitled to serve a notice of objection to severance. If successful the Scottish Ministers would be required to purchase the whole of your property. There is a strict time limit for formally objecting to severance. The exact time limit depends on factors such as the type of your property and the nature of your interest in it. The time limit can be as short as 28 days. Whatever the extent of the time limit, it starts running from the date you are served with the notice that the Scottish Ministers have made the GVD. If you are concerned about severance you should consult your professional advisor.
3.7 Blight is a procedure whereby you can require the Scottish Ministers to buy your property. In certain limited circumstances a property may be blighted as a result of the Scheme, as described in the Bill.
3.8 Where the value of a property has been reduced by the Bill, anyone with a qualifying interest may be entitled to serve a "blight" notice on the Scottish Ministers, requiring them to buy the property at its untainted value. It should be noted that the Scottish Ministers are only required to purchase the whole property when the property falls into defined categories, as set out in Schedule 14 to the Town & Country Planning (Scotland) Act 1997, and that reasonable endeavours have been made to sell the property and which have failed to obtain an offer except at a substantially lower price than might have been expected if it were not in a category of land in schedule 14.
3.9 A list of the circumstances in which a blight notice may be served is set out in Schedule 14 to the Town and Country Planning (Scotland) Act 1997.
3.10 On receipt of a blight notice the Scottish Ministers have two months to accept or reject the notice. If the Scottish Ministers decide to reject the notice they may do so by serving a counter-notice specifying the legal reasons for rejection.
3.11 If you do not agree with the Scottish Ministers’ counter notice you may refer the matter to the Lands Tribunal within two months who will determine the matter.
3.12 The rules governing when a property is blighted are complex. If you think your property may be blighted then you should consult a professional advisor.
Voluntary purchase as an alternative to compulsory purchase
3.13 Notwithstanding the fact that the Scottish Ministers intend to exercise compulsory powers of purchase for the scheme, property may be purchased on a voluntary basis by agreement.
3.14 Where the purchase proceeds on a voluntary basis the terms, including the price, must be agreed. In those circumstances the process for compensation explained in this guide no longer applies.
4. Compensation where property is taken
4.1 This section provides guidance on compensation which is payable for property compulsorily purchased for the scheme. This guidance is not intended to be a complete guide. The statutory provisions and case law that govern the eligibility for and assessment of compensation are complex. Again, it is strongly advised that you seek advice from a professionally qualified person such as a surveyor or solicitor.
4.2 The Scottish Ministers appoint the Valuation Office to assess the level of compensation. The District Valuer, and his staff from the Valuation Office, will discuss the level of compensation with you or your professional advisor.
4.3 Where the Scottish Ministers do not purchase any of your property, compensation may still be payable for the effects of the actual construction of the new roads and bridge as well as their operation following their completion. A general explanation is given in section 5.
Compensation when property is purchased – General principles
4.4 The assessment of compensation will depend on individual circumstances. The underlying principle is to put you, in financial terms, in the same position as if your property had not been taken from you. Basically, the assessment of compensation will take into account the value of your property and the value of related effects (known as Severance, Injurious Affection and Disturbance). The level of compensation is assessed without any increase or decrease in value which would be attributable to the scheme itself.
4.5 The amount of compensation payable cannot exceed your total financial loss. There is a duty on you to mitigate that loss.
Value of property
4.6 There are six basic rules for assessing the value of property compulsorily purchased. These rules are set out in the Land Compensation (Scotland) Act 1973. A brief summary of the rules is set out below.
In assessing the compensation, no addition to or reduction from the value of the property is made to reflect the fact that it is being compulsorily purchased. The purchase of the property is assumed to be an open market transaction between willing parties.
The value of the property is based upon what the property might be expected to realise if sold in the open market by a willing seller. In most circumstances the open market value will be based on the existing use of the property, provided proper consents are in place.
The property may have potential for development if planning permission for that development could be obtained. If the Scottish Ministers accept the property has development potential then this will be taken into account in assessing compensation. If the Scottish Ministers do not accept that your property has development potential then you can apply to your local planning authority for a Certificate of Appropriate Alternative Development. This will determine whether or not your proposed development may have received planning permission had the scheme not gone ahead. The rules governing such an application are linked to planning law and are complex and outwith the scope of this guidance. You should refer any query on this aspect to your professional advisor or your local planning authority.
This rule applies in special circumstances where certain uses of property can only be undertaken by a statutory authority. In assessing compensation no account is taken of these special circumstances.
Any increase in the value of property which is attributable to a use of the property which is unlawful or detrimental to the health of the occupants of the premises or to public health, is not taken into account.
It may not be possible to arrive at a market value where the property to be purchased is (and but for the Bill would continue to be) devoted to a purpose for which there is no general demand or market (e.g. a church). In such circumstance, compensation may be assessed on the basis of how much it would cost to reinstate the facility elsewhere.
The provisions of Rule 2 do not affect the assessment of compensation for disturbance or any other matter not directly based on the value of the property. The compensation you receive, therefore, may not only reflect the open market value of your property, but may also take into account the value of related effects, as described in the paragraphs 4.7 to 4.18.
Value of related effects – Severance and other injurious affection
4.7 Severance is where only part of your property is purchased for the scheme. Compensation may be payable for the adverse physical effects the severance has on the remainder of your property, e.g. the purchase of part of your property may result in the loss of access to the remainder.
4.8 In circumstances where you consider the effect of severance on the remainder of your property is particularly severe, then you may be entitled to serve a notice of objection to severance. If successful the Scottish Ministers would be required to purchase the whole of your property.
4.9 There is a strict time limit for formally objecting to severance. The exact time limit depends on factors such as the type of your property and the nature of your interest in it. The time limit can be as short as 28 days. Whatever the extent of the time limit, it starts running from the date you are served with the notice that the Scottish Ministers have made the GVD. If you are concerned about severance you should consult your professional advisor.
4.10 Injurious affection can also arise where only part of your property is purchased for the scheme. Compensation may be payable for any injurious affection, the term used to describe the adverse effects (such as noise and vibration) the road and its construction can have on the remainder of your property.
4.11 Any claim for severance or other injurious affection must be consistent with the remainder of the claim. If you claim compensation based on the potential your property would have had for development, this may have an effect on any claim for severance and injurious affection.
4.12 There may be instances where the scheme does not have an adverse effect on your remaining property. On the other hand the scheme may increase the value of your remaining property. In such circumstances, any compensation will take into account any increase in value of your remaining property.
4.13 The compulsory purchase of your property may involve you in costs or expenses such as removal expenses, loss of goodwill, loss of profits, professional fees etc. These items are generally referred to as disturbance. Any disturbance would be included in your overall compensation but any disturbance element of the claim must be consistent with the remainder of the claim. Compensation will normally only include a payment for disturbance if the value of the property is based on existing use and not its development potential.
Residential property disturbance
4.14 In the case of a residential property you can claim reasonable costs and expenses if you have to leave that property. The claim can include the costs associated with purchasing a replacement property (but not the purchase price of the property itself) and the costs of moving into the property. Examples of additional items which may be claimed are legal fees and surveyor fees.
Business property disturbance
4.15 In the case of a business property depending upon the particular circumstances of the purchase, disturbance compensation may be based on either the costs of relocating the business or extinguishing the business. Normally you would be expected to relocate your business. If this is not possible it may be necessary for the business to close, in which case compensation will be based on the cost of the total extinguishment of the business.
4.16 There may be circumstances where the costs of relocating the business are greater than the value of the business. In these circumstances there is a case that can be made that compensation is based on extinguishment, as no prudent businessman would incur the costs of relocating the business. However, each case must be looked at on its own merits.
4.17 If you relocate your business you may be entitled to claim the reasonable costs and expenditure arising, including for example, removal expenses, legal fees, surveyor’s fees and architect’s fees.
4.18 Every loss will be considered on its merits. The onus is on you to justify your claim. It is up to you to prove that you should be compensated. Accordingly, it is of the utmost importance that you keep a detailed record of losses sustained and costs incurred in connection with the compulsory purchase of your property. You should keep all relevant documentary evidence such as receipts, invoices and fee quotes.
Other issues - Loans
4.19 If a loan is secured over your property the lender is entitled to be compensated. All or part of your compensation may need to be paid to the lender to redeem all or part of your loan.
Home loss payment
4.20 If you are actually living in the property you may be entitled to a home loss payment in addition to any other compensation due. The home loss payment is an additional sum to reflect and recognise your distress and discomfort at being compelled to move out of your home.
Farm loss payment
4.21 If you are occupying an agricultural unit and are displaced from that unit, you may be entitled to a farm loss payment in addition to any other compensation due. The farm loss payment recognises that as a result of a move to unfamiliar land, you may be faced with temporary losses of yield.
Planning permission after acquisition
4.22 If during the period of ten years after the purchase of your property by the Scottish Ministers, planning permission is granted for the additional development of that property, you may be entitled to additional compensation to reflect any increase in the value of the property.
Advance payment of compensation
4.23 It is not unusual for final compensation to take a considerable time to be agreed. You are entitled to request an advance on your compensation. The Scottish Ministers are obliged to make the payment within three months of receipt of the request provided they have taken possession of the property.
4.24 The level of advance payment where there are no loans outstanding on the property is normally 90% of either the agreed compensation, or where there is no agreement, the Scottish Ministers’ estimate. If there are outstanding loans on the property then an advance payment can only be paid if the amount of the heritable security over the land exceeds 90% of the amount of the advance payment that is agreed or estimated advance.
4.25 Statutory interest, at a prescribed rate, is payable from the date the Scottish Ministers take possession of your property until the date compensation is paid.
Lands Tribunal for Scotland
4.26 If the amount of compensation payable for the compulsory purchase of your property is not agreed, then it can be referred to the Lands Tribunal for Scotland for determination.
5. Compensation where no property is taken
5.1 The procedures outlined in section 4 apply only when property is acquired. A right to compensation, however, may also arise in limited circumstances when no land is taken under the provisions of the Bill.
5.2 Compensation can be claimed for:
- A reduction in the value of your property caused by the construction of the bridge and roads (the scheme)
- A reduction in the value of your property caused by the subsequent use of the scheme
Compensation during construction
5.3 Compensation is payable when a loss occurs because some right in your property is interfered with or taken away, for example, a right of way.
5.4 You must be able to demonstrate that the loss is a consequence of the construction. Compensation is based on the reduction in value of the property as a consequence of the loss.
5.5 If the Bill is passed, the Forth Replacement Crossing Scheme would be authorised by an Act of the Scottish Parliament. This means that you could not bring an action under the general law of nuisance against the project if it interfered with your use or enjoyment of your land or property. This immunity only covers activities and works covered by the Act or which follow on from an activity or work authorised by the Act. You can still claim compensation for activities which are negligent.
5.6 If you want to claim compensation in these circumstances your claim must pass each of the four tests which are known as the McCarthy rules and are as follows:
1. The fall in the value of your land is due to work authorised by the scheme.
2. Something has been done which you could normally have taken action against if the scheme had not been protected by law.
3. Your land has fallen in value because a lawful right you enjoy, which increases the value of your land is being physically interfered with.
4. The fall in value is due to ongoing work and not the operation of the new crossing.
5.7 If, for instance, you wish to sell your property, but cannot obtain a reasonable price because of construction work you should as a first step approach Transport Scotland and explain your difficulties and ask them to consider buying your property. You cannot however, force Scottish Ministers to make the purchase. If as discussed under paragraph 5.3, there is an interference with your legal rights affecting your property, you might be able to make a claim for "injurious affection compensation" and you may wish to seek legal advice about this.
5.8 If the disturbance becomes so serious that occupation of your house is not reasonably practicable, you can make a request to Transport Scotland to pay the cost of temporary accommodation. It is important that you obtain agreement from Transport Scotland before you incur any expenses.
5.9 If your property is badly affected by noise from the construction you may be able to benefit from sound insulation and you should contact Transport Scotland for further information.
Compensation once the bridge and roads are operational
5.10 The right to compensation for the reduction in the value of your property caused by the subsequent use of the scheme is set out in Part 1 of the Land Compensation Act 1973. The first day on which compensation can be claimed is the day after twelve months have expired from the relevant date and is known as the "first claim day". The first claim day for the new bridge and roads will be twelve months following the day the bridge and roads open.
5.11 In order to be able to submit a claim you must own a qualifying interest in the property before the relevant date. The qualifying interest is defined in the Act but is broadly a freehold or tenancy which will not expire within three years or a business which has a rateable value below a prescribed level. The prescribed level is £28,000 as set in the Town & Country Planning (Limit of Annual Value) (Scotland) Order 2005.
5.12 Compensation is assessed once the road and bridge has been operational for 12 months and is based on the depreciation in the value of the property due to physical factors caused by the use of the road and bridge.
5.13 The physical factors are:
- Artificial light
- Discharge onto the land of any solid or liquid substance
5.14 Any depreciation in value attributable to reasons other than those given above will not be compensated. A loss of view for instance will not be compensated.
6. Contact details
6.1 If any interest you have in a property is affected by the scheme, the Scottish Ministers recommend that you seek professional advice. However, if having read this guidance there is a matter which requires clarification then please contact Transport Scotland. In any correspondence please provide as much detail as you can to help us with your enquiry.
Land and Procurement Manager,
Forth Replacement Crossing Project Team
Edinburgh EH6 6QQ
Tel: 0131 244 7245
6.2 Only general queries relating to property should be directed to Allan Roberts; for all other queries relating to the project please contact the project team:
Forth Replacement Crossing - Contact and Education Centre
Edinburgh EH30 9SF
Tel: 0131 203 7572
6.3 The Scottish Parliament:
Hybrid Bills Unit
The Scottish Parliament
Tele: 0131 348 5246